PETITIONER: SARDA PRASAD AND OTHERS Vs. RESPONDENT: LALA JUMNA PRASAD AND OTHERS. DATE OF JUDGMENT: 20/02/1961 BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. CITATION: 1961 AIR 1074 1961 SCR (3) 875 ACT: Limitation-Execution-Decree for joint Possession in favour of Hindu father and minor sons-Failure of father to execute within the Period of limitation-Right of sons, if barred- Indian Limitation Act, 194 (9 of 1908), s. 7-Code of Civil Procedure, 1908 (5 of 1908), 32, rr. 6, 7. HEADNOTE: A decree dated September 2, 1938, in a suit for partition of joint Hindu family property awarded a house to the share of one J and his four minor sons. J failed to execute the decree. On November 23, 1949, an application was made by the appellants, the four sons of J, for execution of the decree stating that three of them had been minors till then and one of them was still a minor and so no question of limitation arose. The respondent objected that the application was barred under S. 7 of the Indian Limitation Act. The appellants contended that s. 7 did not apply to a partition decree and that S. 7 was no bar as j could not have given a valid discharge of the liability under the decree in view of the provisions of 0. 32 of the Code of Civil Procedure. Held, that the application for execution was barred by limitation. J, the managing member of the family could have given a discharge of the liability under the partition decree by accepting possession on behalf of his minor sons without their consent and so time ran against them under s. 7 from the date of the decree. Order 32, rr. 6 and 7 were no bar to j giving a discharge of the liability under the decree as it was neither a case of receipt of any money or movable property nor was there any question of entering into an agreement or compromise on behalf of the minors. Ganesha Row v. Tuljaram Row (1913) L.R. 40 1.A. 132, Parmeshwari Singh v. Ranjit Singh, A.I.R. 1939 Pat. 33 and Letchmatsa Chetty v. Subbiah Chotty, (1924) I.L.R. 47 Mad. 920, referred to. 876 JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 276 of 1956.
Appeal from the judgment and decree dated October 15, 1954,
of the Allahabad High Court in Execution First Appeal No.
224 of 1951.
S. P. Sinha and Tiryugi Narain for the appellants.
G. C. Mathur, for respondent No. 1.
1961. February 20. The Judgment of the Court was delivered
by
DAS GUPTA, J.-This appeal raises a question of limitation in
execution proceedings. The decree sought to be executed was
made by the Civil Judge, Kanpur, on September 2, 1938, in a
suit for partition brought by two brothers Jumna Prasad and
Devi Prasad and two minor sons of Jumna Prasad, against
Gajju Lal, his son Jawala Prasad, the four minor sons of
Jawala Prasad-Sharda Prasad, Dharam Pal, Ram Pal and Krishna
Pal, and one Smt. Sundari. By the decree one of the
properties, a house formerly bearing No. 36/22 and now
36/58, Etawa Bazar, Kanpur, was awarded along with other
properties to the defendants in the suit. The present
application for execution was made by the four brothers,
Sharda Prasad, Dharam Pal, Ram Pal and Krishna Pal on Novem-
ber 23, 1949. The prayer was that these applicants may be
delivered possession over this Etawa Bazar house along with
Gajju Lal, Jawala Prasad and Smt. Sundari on dispossession
of Jumna Prasad and Devi Prasad. It is stated in the
application that all these applicants had ” up till now been
minors and one of them is still a minor and so no question
in respect of time arises.” This’ it is important to note,
was the first application for execution of the’ partition
decree. A number of objections were raised but the principal
objection and the only one with which we are concerned in
this appeal was that the application was barred by time.
The decision of this question depended on the answer to the
question raised on behalf of the opposite parties that
Jawala Prasad one of the persons entitled jointly ‘with
these applicants to make an application for the execution of
the decree could have
877
given a discharge of the liability under the decree without
the concurrence of his minor sons and so time ran under s. 7
of the Limitation Act against them also from the date of the
decree.
The Trial Court did not feel satisfied that Jawala Prasad
could give a valid discharge and held accordingly that the
application was within time.
on appeal the High Court held that Jawala Prasad as the
Karta of the Hindu joint family could act on behalf of the
entire joint family in taking possession of the house
allotted to the defendants and delivery of such possession
could discharge the liability qua the entire joint family
and held accordingly that the application was barred by
limitation. The High Court however granted a certificate
under Art. 133(1)(c) of the Constitution and on that
certificate this appeal has been filed by the applicants for
execution.
Two contentions were raised on behalf of the appellants in
support of the plea that the High Court erred in holding
that the application for execution was barred by limitation.
First, it is urged that s. 7 of the Limitation Act does not
apply at all to a partition decree. The second contention
is that in any case Jawala Prasad could not give a valid
discharge of the liability under the decree in view of the
provisions of O. 32 of the Code of Civil Procedure.
On the first contention the argument is that the word ”
discharge ” is appropriate only in respect of a monetary
claim and is wholly inappropriate in respect of any decree
for possession whether on partition or otherwise. There is,
in our opinion no substance in this argument. The mere fact
that the two illustrations to s. 7 are in respect of debts
is no ground for thinking that the provisions of s. 7 are
limited to suits or decrees on monetary claims only. Nor
can we see any reason to think that the word ” discharge ”
can refer only to debts. Discharge means, to free from
liability. The liability may be in respect of monetary
claims, like the debts; it may be in respect of possession
of property; it may be in respect of taking some order as
regards property it may be in respect of many other matters.
Except in the case of declaratory decrees or
878
decrees of a similar nature, the decree in favour of one
person against another requires the person against whom the
decree is made liable to do something or to refrain from
doing something. This liability is in a sense a debt which
the party is in law bound to discharge. The ordinary use of
the word ” judgment debtor ” to denote a person against whom
a decree has been made makes a clear recognition of this.
It is worth mentioning in this connection that the Code of
Civil Procedure itself defines ” judgment-debtor ” to mean
” any person against whom a decree is passed or an order
capable of execution has been made.”
It is helpful to notice in this connection the provisions of
s. 8 of the Limitation Act that ” nothing in s. 6 or s. 7
applies to suits to enforce rights of preemption.” If s. 7
had been applicable merely to litigation for monetary claims
it would have been unnecessary and indeed meaningless to
take the special step of exempting suits to enforce rights
of pre-emption from the operation of s. 7. This is a further
reason in support of the conclusion that the word ”
discharge” in s. 7 is not limited to discharge of monetary
claims only but also to discharge or satisfaction of all
other liabilities as well. We therefore hold that the first
argument raised on behalf of the appellants has no
substance.
Equally untenable is the second argument that the provisions
of 0. 32 of the Code of Civil Procedure debar the manager of
a Hindu joint family from giving discharge in respect of a
liability to deliver properties. Under the Hindu Law the
Karta of a Hindu joint family represents all the members of
the family and has the power and duty to take action which
binds the family in connection with all matters of
management of the family property. Clearly, therefore, when
in respect of a transaction of property possession has to be
received by the several members of the family, it is the
Karta’s duty and power to take possession on behalf of the
entire family, including himself, the members of the family
who are sui juris as well as those who are not.
879
When any minor member of a joint family is a party to a
proceeding in a court he has however to be represented by a
next friend appointed by-the court and where somebody other
than the managing member, of the family has been appointed a
guardian ad litem there might be difficulty in the way of
the managing member giving a discharge on behalf of the
minor. Where however the managing member himself is the
guardian ad litem the only difficulty in the way of action
being taken by him on behalf of a minor is to the extent as
mentioned in 0. 32, rr. 6 and 7. In Ganesha Row v. Tuljaram
Row (1) the Judicial Committee pointed out that:-
” No doubt a father or managing member of a
joint Hindu family may, under certain circum-
stances and subject to certain conditions,
enter into agreements which may be binding on
the minor members of the family. But where a
minor is party to a suit and a next friend or
guardian has been appointed to look after the
rights and interests of the infant in and
concerning the suit, the acts of such next
friend or guardian are subject to the control
of the Court.”
In that case their Lordships held that in view of the
provisions of s. 462 of the then Code of Civil Procedure
(which corresponds to 0. 32, r. 7 of the present Civil
Procedure Code) the managing member who had been appointed a
guardian in the suit had no authority to enter into any
compromise or agreement purporting to bind the minor. This
principle has been applied also to cases where the
provisions of 0. 32, r. 6 would apply and so it has been
held in numerous cases in India that the Karta of a Hindu
joint family though guardian in the suit cannot give a valid
discharge in respect of a claim or a decree for is money or
other movable property.” (Parmeshwari Singh v. Banjit Singh
(2) and Letchmana Chetty v. Subbiah Chetty (3))
In the present case however there is no scope for the
application of either the provisions of 0. 32, r. 6 or O.32,
r. 7 of the Code of Civil Procedure. Neither is
(1) (1913) L.R. 40 I.A. 132,138, (2) A.I.R. 1939 Pat. 33.
(3) (1924) I.L.R. 47 Mad. 920.
880
this a case of a receipt of any money or movable properties
nor is there any question of entering into an agreement or
compromise on behalf of the minor. For, clearly acceptance
of delivery of possession of property in terms of the decree
in a partition suit can by no stretch of imagination be
considered entering into any ” agreement or compromise”
We are therefore of the opinion that Jawala Prasad, the
managing member of the family could have given a discharge
of the liability under the partition decree by accepting
delivery of possession on behalf of his minor sons without
their consent and so time ran against them also under s. 7
of the Limitation Act from the date of the decree. The High
Court was therefore right in its conclusion that the
application for execution was barred by limitation.
The appeal is accordingly dismissed with costs.
Appeal dismissed.